A legal outcome in a public domain

Page Tools

Tom Knapp says the use of open source software is governed by terms that differ from those lawyers may have reviewed. Photo: Tanya Lake

Over the past 12 months, a greater awareness has emerged among
lawyers about the existence of open source software and the need to
identify its use within an organisation.

Lawyers should not assume that, alerted to its existence, they
can apply their usual skills and easily advise their client or
employer.

The Free Software Foundation coined the term "copyleft", as
opposed to copyright, to distinguish the key philosophy that
modifications to open source should be made freely available to
everyone. A lawyer new to this topic needs to understand that open
source software is not in the public domain. Its use is governed by
licence terms and these terms differ markedly from those they may
have reviewed.

The terms often reflect a political manifesto rather than
predictable commercial terms that serve a business purpose, there
is ambiguity and uncertainty in the licence terms and no warranties
or indemnities are provided for unsupported versions.

There are several key licensing issues that counsel will have to
address. Assuming there is a process to capture the use of open
source within an organisation, counsel will be expected to review
the licences that the IT department wishes to use. In the case of
the general public licence (GPL), the challenge is to review its
terms and provide definitive advice.

Say your in-house IT department wants to incorporate open source
into a you-beaut software product it is developing. Provided
modification of the open source software by your IT department is
restricted to internal use and there is no distribution of the
modified version outside your organisation, there may be no
issues.

But what if you want to make the application available to
related companies of your organisation? Say, the separate companies
established to represent the various lines of an insurance
business. Under section two of the GPL, if you modify the software
and then distribute it, you must license the modified software as a
whole at no charge to all third parties.

Arguably, this means that if your organisation licenses modified
GPL code to a related company, it would have to make that modified
source code available under the licence terms of the GPL - which
are governed by copyleft rather than copyright principles to, say,
your competitors.

There is no concept of a group licence and there is no
definition of what is meant by a third party. However, there is a
long list of FAQs associated with the queries about the GPL. But do
the FAQs form part of the licence terms? Certainly, when you read
them, they give one possible interpretation of the licence term.
Usually, that view supports the social movement behind open source,
but not necessarily your interpretation.

The lesser general public licence (LGPL), for instance, permits
linking of a subroutine library to a proprietary application; the
mere running of an application using the library is not restricted.
An organisation could use its own licence terms and there would be
no viral impact. If the library is modified and used with an
organisation's proprietary application, then the complete program
must be made available to all third parties at no charge under the
LGPL.

Whenever proprietary code is mixed with open source, there is a
risk that licence terms have been infringed. If the proprietary
code was granted under a commercial licence, then it is likely that
its terms would be breached by seeking to comply with the terms of
the GPL.

Relatively few cases have reached the courts and they tend to be
at the interlocutory stage. The court appears to take the view that
the GPL terms are clear on use of code and therefore decisions have
been in favour of the plaintiff GPL licensor. It would be
interesting if a lower-court decision enforcing the terms of the
GPL was appealed against. There seems to be a reluctance to take
that challenge, which, in part, could be a concern that if you
challenge a GPL licensor you may end up taking on the whole open
source community.

With open source code being continually developed by the
community, the issue of just who is the copyright owner may prove a
challenge for someone seeking to establish they have the legal
standing to begin an action for copyright infringement.

Despite the complexities, the benefits of open source make it
worth persevering. There are still many licences that permit the
use, modification and distribution of open source code upon minimal
terms.

Tom Knapp is vice-president and general counsel Asia Pacific for
Computer Sciences Corporation.

Next Lessons

What's different about an OSS licence?

Its use is governed by licence terms and these terms differ
markedly from those counsel may have reviewed before.

An OSS licence is not written by lawyers for lawyers. You won't
find expressions such as the supplier provides a non-exclusive,
royalty free revocable licence, for the territory of X, to do the
following.

No warranties or indemnities are provided for unsupported
versions.

There is ambiguity and uncertainty in the drafting of the
licence terms.

Having an IT background (or a friend who understands software
development) is a significant advantage, because in these licences
the technology sits in the front seat and the commercial and legal
terms with which IT and IP lawyers, in particular, are familiar,
are relegated, somewhat to the back stalls.

Tom Knapp is vice-president and general counsel Asia Pacific
for Computer Sciences Corporation.